Refocusing on Questioning the Question to Help with Essay Timing
If you’re having issues with completing essay questions on time (as some of y’all on the MEE 1 assignment did), rely on the systematic problem-solving approach that you should be utilizing when answering multiple-choice questions. After all, the purpose of the systematic problem-solving approach when answering MCQs is to force yourself to treat MCQs as essay questions and try to resolve the questions without looking at or being influenced by the available answer choices. That’s exactly what you’re doing when you’re responding to an essay question.
So let’s review the steps of the systematic problem-solving approach and highlight probably the most important step when it comes to improving timing and time management on the essays.
As you recall, the systematic problem-solving approach is a six-step process:
Step 1: Read the call of the question
Step 2: Question the question
Step 3: Canvass and dissect the
Step 4: Gather your thoughts
Step 5: Make a prediction based on the narrow issue
Step 6: Select the best answer that matches your prediction
These six steps can be used when answering essay questions rather than MCQs. Simply replace Step 6 (“Select the best answer that matches your prediction”) with “Draft your response.”
The first two steps are the most important steps in the systematic problem-solving approach, regardless of whether your responding to MBE, MEE, or even MPT questions (where the Task Memorandum in an MPT is analogous to the test packet’s call).
Remember that Step 1 isn't just important to identify the subject being tested (e.g., Evidence, Torts, Real Property, etc.), but it helps you identify the more specific concept that’s being tested (e.g., hearsay in Evidence, negligence in Torts, or landlord-tenant issues in Real Property).
More importantly, however, is that Step 1 helps to set up Step 2, Question the Question, which gives you the tools to help you dissect the fact pattern a bit more carefully and thoroughly the first time you go through it because you know specifically what you’re look for at this point.
This helps with timing and time management because, in a 30-minute essay or even a 1 minute and 48 seconds MBE question, you simply don’t have the luxury of reading and rereading and re-rereading a fact pattern. Sure, you might have to reference back to the fact pattern to pull specific information out to incorporate into your essay response or to jog your memory, but you shouldn’t be trying to uncover new information that you haven’t uncovered the first time that you reviewed the fact pattern.
Let’s look at an example.
Let’s say a call provides, “Is the foreman’s proposed testimony hearsay?” Notice what a rich call we have here. Not only do we know this is an Evidence question, we also know it’s testing hearsay. Boom—Step 1 is complete.
Now, let’s focus on Step 2. Think about the definition of hearsay. It’s an out-of-court statement, offered to prove the truth of the matter asserted. So what initial questions do we have based on the call here? In other words, question the question.
We want to know, “Did the foreman make this statement out of court?” We also want to know why the foreman’s testimony is being offered? In other words, is it being offered for its truth or some other purpose? To answer this call, we have to determine whether this testimony is really hearsay. What else? You might also want to know whatthe underlying matter is—meaning, what’s the cause of action. You might also have asked: What does the statement say? Who is the foreman—Is he a party to the case or a third party? Is he a witness testifying? Also, who is the proponent of the statement—meaning, who’s offering it and why?
You might also be thinking, okay, even if the statement meets the definition of hearsay, are there any applicable exclusions? What are the applicable exclusions? What are the most likely hearsay exclusions to be tested in bar exam question? If there aren’t any applicable exclusions, then are there any applicable exceptions? What are the the different hearsay exceptions? Which ones require the declarant to be unavailable, and which ones don’t?
With all those initial questions in mind, you’ve better positioned yourself to go to Step 3, which is canvassing and dissecting the facts. At this point, since you know some of the things you should be looking for as you’re reading the fact pattern, you will be in a better position to uncover and identify those legally significant facts as you read the fact pattern the first time through.
Here’s some good practice you might want to incorporate into your next study session. Take a handful of MBE or MEE questions (maybe five or so), and just look at the calls of the questions. Just the calls. You don’t have to read the fact patterns at this point—just read the calls of the questions. After you read each call of the question, just spend a minute or so questioning the question. Try to unpack what the question drafters are trying to ask. This focused practice on one specific skill of the systematic problem-solving approach can help you think about information that you should be thinking about as you carefully read the fact pattern the first—and only—time from beginning to end.
This process might feel forced at first (but hopefully it doesn’t if you’ve been practicing this skill since MEE and MBE Skills). But after some time, you’ll be questioning the question without really thinking about it as it becomes more like muscle memory.
Substantive Law—Torts (Statutes)
Today is “55 mph Speed Limit Day.” This had me thinking about statutes in bar exam questions. Here are some things to think about:
It appears that more recent MEE questions have incorporated specific statutes within the test question. Oftentimes, these questions require you to answer the question using general applicable principles of law that are slightly modified or supplemented with the supplied statute in the fact pattern. Make sure you carefully dissect and apply the statute given to you. What the examiners appear to be doing in these kinds of questions is incorporating a "micro" MPT-like situation in an MEE context.
Another common scenario where you will see statutes is in Torts questions, specifically in a negligence question. Remember that a statute can replace the default reasonable person standard. But be careful—the statute doesn’t always apply, and when it doesn’t, the default reasonable person standard remains in place. When does a statute replace the reasonable person standard? The plaintiff must prove the following:
The plaintiff must show that she is in the class intended to be protected by the statute.
The plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered.
The statute provides for a criminal penalty.
The standard of conduct is clearly defined in the statute.
For bar exam purposes, the examiners tend to focus on the first two requirements: (1) type of class and (2) type of harm. But don’t overlook the latter two requirements.
Also, remember, if the statute applies, and the defendant violated the statute, negligence per se exists. However, negligence per se only means that the defendant engaged in negligent conduct (i.e., the defendant owed a duty to the plaintiff and breached that duty). Negligence per se doesn’t mean that the defendant is negligent. Being negligent requires causation and damages be established, too. So if a defendant violates a statute in a negligence question, make sure the plaintiff can prove causation (actual and proximate) and damages as well.
